CHAPTER – 1

INTRODUCTION

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1.1 INTRODUCTION

The framing of the Indian Constitution took place long ago around 70 years before. The
Constituent Assembly worked on framing the Constitution keeping in mind the needs
and requirements of the citizens of India. The Constitution of independent India was
meant more than a mere legal manuscript – that likely to structure the norms of
governing as well as defining the functions of various key institutions and political
actors – for the whole society in general and underprivileged sections in particular who
were exploited in multiple ways over the centuries especially due to the prevailing
dominant social order of Hindu society1. In the late nineties, efforts were made to
review the entire Constitution. In the year 2000, the National Commission to review the
working of the Constitution (NCRWC) was appointed by the NDA Government of
India under the chairmanship of a retired Chief Justice of the Supreme Court, Justice
Venkatachaliah. The terms of reference given to the Commission stated that the
Commission shall examine, in the light of the experience of the past fifty years, as to
how best the Constitution can respond to the changing needs of efficient, smooth and
effective system of governance and socio economic development of modern India
within the framework of parliamentary democracy, and to recommend changes, if any,
that are required in the provisions of the Constitution without interfering with its „basic
structure‟ or „basic features‟. When we are dealing with one of the provisions of
Constitution that is not so clear, how should we go about deciding what the
Constitution requires? One view – the view that is commonly called „originalism‟ –
gives an answer that seems appealing to many people2. The core idea of originalism is
that when we give meanings to the words of the Constitution, we should use the
meanings that the people who adopted those constitutional provisions would have

1
Kamal Kumar, “Indian Constitution: The Vision of B.R. Ambedkar”, 19 IOSR – Journal of
Humanities and Social Sciences 29 (2014).
2
David A. Strauss, The Living Constitution 10 (Oxford University Press, London, 2010).

1
assigned. Many clauses of the Constitution are unequivocal and leave no room for
interpretation. According to originalists, it is impermissible – it‟s a kind of cheating,
really – to take the words of the Constitution and give those words a meaning that
differs from the understandings of the people who were responsible for including those
words in the Constitution in the first place3. In the modern constitutional theory,
originalism (an approach that attempts to enforce the original understanding of the
Constitution) sets itself against the interpretive practice known as living
constitutionalism, which gives greater priority to contemporary understandings. The
debate between originalists and living constitutionalists is generally considered one of
the most important current battles over how the Constitution should be interpreted.

1.2 CONSTITUTION OF INDIA: AN INSTRUMENT OF SOCIAL CHANGE

As a matter of fact, laws and Constitution is made for the people of the nation and it is
the people only that become the cause for some changes in laws or Constitution. If
there will be change in the Constitution, it will affect the public at large because law
works for society and society works in law. Nothing remains static in society as things
are bound to change with the change in time. „Social change‟ implies the changes or
variations that take place in society because of change in the needs and requirements of
the people.

Acc. to M.E. Jones,

“Social change is a term used to describe variations in, or modifications

of, any aspect of social processes, social patterns, social interaction or
social organization”.

Acc. to MacIver and Page,

“Social change refers to a process responsive to many types of changes;

to changes in the manmade conditions of life; to change in the attitudes
and beliefs of men, and to the changes that go beyond the human control
to the biological and the physical nature of things”.

3
Ibid.

2
Constitution cannot remain frozen with time; else the resultant outcome would be
problems and conflicts in society. Different renowned persons have opined their own
views with regard to „Constitution of India‟. An analysis is made as follows:

M.K. Gandhi‟s Views -

Writing on the future Constitution of India long before it really came into being
Gandhiji wrote,

“Swaraj will not be a free gift of the British Parliament. It will be a

declaration of India’s full self-expression, expressed through an Act of
Parliament. But it will be merely a courteous ratification of the declared
wish of the people of India. The ratification will be a treaty to which
Britain will be a party. The British Parliament, when the settlement
comes, will ratify the wishes of the people of India as expressed through
the freely chosen representatives”4.

Jawaharlal Nehru‟s Views -

Mr. Nehru said,

“The first task of this Assembly (Constituent Assembly of India) is to

free India through a new Constitution, to feed the starving people and to
cloth the naked masses, and to give every Indian the fullest opportunity
to develop himself to his capacity”5.

Though Nehru was in favour of social freedom and social welfare but nevertheless, he
was inclined towards „living constitution‟. Nehru once stated,

“While we want this Constitution to be as solid and as permanent a

structure as we can make it, nevertheless there is no permanence in the
Constitutions. There should be certain flexibility. If you make anything
rigid and permanent, you stop a nation’s growth, the growth of a living,
vital and organic people”.

4
Anil K. Mohapatra, “Constitution of India: An Instrument of Social Change”, 7 Odisha Law Review
13 (2016).
5
Ibid.

3
Dr. B.R. Ambedkar‟s Views -

Dr. B.R. Ambedkar as considered to be the father of Indian Constitution presented

before the Assembly a well framed „Constitution of India‟ (COI) for the future years to
come with the aim to provide social welfare and maintain democratic set up of the
nation. But just a day before the adoption of Constitution i.e. on 25.11.1949, Dr. B.R.
Ambedkar gave a warning about three possible dangers to the new born Constitution
and its democracy. Those dangers were: social and economic inequalities; use of
unconstitutional methods; and hero – worship.

1.2.1 Original Constitution

Constitution should be understood as the „original constitution‟ which was adopted on

26.11.1949. Originalism can be understood in relation to the word „original‟ i.e. as the
thing came out to be or as it was formed or framed. Constitutions are framed by the
framers with the intent to make the nation work according to the provisions stated
therein. The notion of „Originalism‟ can be explained in the light of „Interpretation of
Constitution‟. The supporters of the „originalism‟ opined that the Constitution should
be just interpreted by the Judges rather than allowing the Judges to mould and change
the Constitution itself because the Judges should just explain as to „what does it mean‟
and not „what it ought to mean‟. Thence, in the latter case it will tend to enhance
judicial activism thereby allowing the judges to change the meaning of Constitution
according to their own perception and taking away sovereignty from the Indian people.

The notion of „originalism‟ implies that the reader must interpret and understand the
bare text of the Constitution in its original way i.e. as per the intention of the framers of
the Constitution. The Constitution of India which took almost three years to complete
had undergone varieated deliberations and debates and also went under political
pressure. Once it was drafted and came into force in 1950, its interpretation began. The
word „constitutional interpretation‟ can be understood in the light of „originalism‟ or
„living and dynamic interpretation‟.

The concept of originalism contrasts the concept of living and dynamic constitution.
The theory of originalism in its aspect has undergone many transformations. These

4
transformations or interpretations of the word „originalism‟ in the light of interpreting
the Constitution are discussed as under:

First, „originalism‟ relates to „intentionalism‟; which stands opposite to „textualism‟.

Intentionalism is a theory of figuring out as to what the framers had in their mind while
framing the provisions of the Constitution. They opined that there is no point of
understanding the written text without understanding the object or any other intention
of the framers whether it is expressly written or not. However, this canon of originalists
is in a minority view among all other originalists. Second, „originalism‟ implies the
„text‟ of the Constitution i.e. whatever is written in the text of the Constitution is to be
interpreted as such. It thereby means „textualism‟ and the persons supporting and
asserting this theory are known as „textualists‟. Textualism is a theory or method of
statutory interpretation wherein the interpretation of the law or Constitution is based on
the plain meaning rule i.e. solely upon the written text of the Constitution. Under this
formalist method, no such regard is given to the intention or purpose or aim of the
framers of the Constitution. It does not even consider the legislative history or material
sources while attempting to ascertain the true meaning of the bare text. United States
Supreme Court Judges like Hugo Black and Anton Scalia are considered to be the
„textualists‟.

Textualists usually contend against intentionalists on the ground that the bare provision
of the law which has been formulated by member of Parliament or State Legislatures
and the bare provision of the Constitution which has been formulated by members of
Constituent Assembly has no genuine collective intent of the framers about the
statutory writing because of the political conflicts among them and hence intention for
the purpose of interpretation makes no basis for any reliability.

Textualists opine that „textualism‟ should also not be misunderstood as „strict

constructionism‟. But in fact, it is more co-extensive with plain meaning rule. Acc. to
Justice Anton Scalia:

“Textualism should not be confused with so called strict

constructionism, a degraded form of textualism that brings the whole
philosophy into disrepute. I am not a strict constructionist, and no one

5
 ought to be… A text should not be construed strictly, and it should not
be construed leniently, it should be construed reasonably, to contain all
that it fairly means”.

As stated above, Justice Anton Scalia was both originalist and textaulist and therefore
he agitated with other US Judges that US Constitution should not be interpreted as
Living Constitution but rather textualism method of interpretation should be relied
upon. Being the staunch supporter of „textualism‟ he believed that what is to be
interpreted or what is the object of our investigation is „what is said or what is written‟
and not „what is meant‟. Thence, this textualism theory of originalists interpretation is
among majority view.

Third, the shift from „textualism‟ occurred and a new form of „original public meaning
jurisprudence‟ or „public meaning originalism‟ came into picture as an approach to the
interpretation of the Constitution. It can be referred to as a form of „textualism‟ wherein
the words and text of the Constitution is interpreted as it would have been understood
by a competent and reasonable prudent man of the time period when the Constitution
was enacted. Many renowned jurists termed this approach as „Originalism 2.0‟ or „New
Originalism‟. This has been considered to be a new dimension in the field of
„originalism‟, which focused upon the understanding of the „reasonable observer‟ in
comparison to subjective intentions of the framers of the Constitution. For few, public
meaning originalists collapse into original intent and for few it does not. Public
meaning originalists believe that public meaning dispenses with examining what the
framers intended6. What the framers intended to do with words they wrote is often good
evidence of what the public meaning was, particularly if they made their intent manifest
publically7. On the other hand, for public meaning originalists, the framers intent does
not constitute the public meaning conceptually and it may not even provide powerful
evidence of that meaning if it were not known and contrary to other evidence of what
their words would have meant8.

6
John O‟ Mcginnis, Public Meaning Originalism is not indifferent to Evidence about the intent of the
framers, available at www.libertylawsite.org/2015/11/10/public-meaning-originalism-is-not-
indifferent-to-evidence-about-the-intent-of-the-framers/ (last visited on March 29, 2018).
7
Ibid.
8
Ibid.

6
Recently in 2016, President Trump nominated Justice Neil Gorsuch very warmly to
support and praise the former Supreme Court Justice Anton Scalia‟s approach towards
„public meaning originalism‟. Justice Anton Scalia confines that whenever the Judge is
to interpret the Constitution, he should do so in the light of „textualism‟ and
„originalism‟. A person who is textualist originalist should seek to focus upon „public
meaning originalism‟ approach as an interpretative guide to the Constitution. The
original public meaning is how a reasonable and reasonably well-informed member of
the public alive at the time the provision was enacted would have understood it to apply
in circumstances like those facing the judge9.

1.2.2 Living Constitution

It is definitely not possible for any country to redraft and rewrite the Constitution in
reply to the changing situation of the country as well as modifying circumstances
prevailing due to political upheavals. Our Constitution of India actually came into force
in 1950 and more than sixty nine years have been passed but the Constitution is
working in its natural framework and according to the intention of the legislators with
which it had passed. Undoubtedly, we know that for our Indian Constitution lots many
deliberations have been made but it does not mean that it can provide for all future
circumstances and so it needs so change. The only reason for this is that the stable and
static Constitution cannot serve the purpose of the country. The most controversial
aspect with regard to Constitution is that is it a living constitution or a stable
constitution? Do we have a living Constitution? Do we want to have a living
Constitution? Can we change it with changing scenario of the nation? Change means
any kind of amendments or alterations but is it easy and feasible to do so? The answer
to such question is that our Indian Constitution is such which accepts the requirement
of being changed according to the changing needs and demands of the society. The
change is to be done either expressly through amendments or through interpretation of
the bare text and provisions of the Constitution10.

9
John Greabe, Constitutional Connections: Textualism and Originalism in Constitutional
Interpretation, available at www.concordmonitor.com/textualism-and-originalism-in-constitutional-
interpretation-8000920 (last visited on March 30, 2018).
10
Ibid.

7
The amendment process provided under Article 368 of the Indian Constitution is quite
cumbersome and requires plentiful time. However, one thing is to be remembered that
„change‟ is the needfulness in the society from which no one can shun away. Now if
Constitution is allowed to change then “someone” will change it. Who is “someone”?
Is it a group of judges or some political parties? If such people are given the liberty to
change the Constitution, then it will be no more a Constitution but will be seen as a
mixture of gauzy ideas of some people in power. This will disapprove the democratic
principle of our nation. The only solution to this issue is that we need to imbibe the
concept of „constitutionalism‟. Constitutionalism is about imposing restraints upon the
powers of the three wings of the nation in order to keep them within their ambit.
Admittedly it is only through the path of constitutionalism that both the adaptability as
well as stability of the Indian Constitution can be well maintained. It, however, means
that Constitution is only allowed to be change in a way that it is not eradicating its basic
notion. The coming of landmark judgment11 in 1973 proved that any of the provisions
of the Constitution can be thus amended but it should not alter the “Basic Structure” of
the Constitution. The bench of 13 judges gave their own meaning and interpretation to
the word “Basic Structure”. Even at that time it was stated that the word “Basic
Structure” will not be given any confined meaning rather any feature which seems to be
of utmost importance as per the circumstances prevailing in society, will be covered
within the ambit of “basic structure”.

Thence, the approach of living constitutionalists states that the Constitution is to be

understood in the light and facts of the conditions and attitudes of the people that have
changed since the time of framing of Constitution of India.

1.3 REVIEW OF LITERATURE

BOOKS

Charles Howard McIlwain12, in his book examines of the rise of constitutionalism

from the "democratic strands" in the works of Aristotle and Cicero through the

11
His Holiness Kesavananda Bharti Sripadagalavaru v. State of Kerala and Another, AIR 1973 SC
1461.
12
Constitutionalism: Ancient and Modern (Cornell University Press, New York, 1947).

8
transitional moment between the medieval and the modern eras. He talks about the
notion of constitutionalism in the middle ages, the transition from middle to modern as
well as the modern constitutionalism and its problems. Some modern definitions of
constitutionalism along with its detailed description are mentioned in this book. The
book beautifully described that how ancient constitutionalism affected over the modern
constitutionalism. The book explores the very roots of liberty by examining the
development of modern constitutionalism from its ancient and medieval origins.
McIlwain explores what he calls “the two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight” – “the legal limits to
arbitrary power and a complete political responsibility of government to the
governed”. Despotic power has risen to challenge constitutional governments in many
countries, and within this text, McIlwain shows how constitutional safeguards that have
been set against government by force have grown in the Western world. He concludes
with a discussion of the forces of despotism that were threatening constitutionally
based individual freedom in the 1930s.

R.N. Spann13, in this book reprints the papers and discussions of the Seminar on
Constitutionalism in Asia. The aim of the book is to consider how constitutional
government was faring in some Asian countries, which has achieved independence
under western type constitutions since the war. On the face of it, it might have been
supposed that constitutional government was not faring too well. The author has dealt
with some important aspects like, problem of communal minorities in the drafting of
the Indian Constitution; aspects of political power and the demise of parliamentary
democracy; issues and politics in Asian politics and government; the courts and
constitution in India and most substantially about the search for constitutionalism in
India. One of the problems that occupied greatly in this book is about the alleged „gap‟
that existed in Asian societies between „modern‟ processes of government at one level
and the traditional political processes at other levels – village politics, caste politics,
religious politics and so on.

13
Constitutionalism in Asia (Asia Publishing House, Bombay, 1963).

9
Earl M. Maltz14, argues that Constitutional theory has reached a critical impasse
marked by a largely unproductive stalemate between originalists and non-originalists
regarding the proper role of judicial review. Acc. To him, it‟s time for both sides to
rethink their positions if any hope for a more viable model of judicial review is to be
realised. This book is his answer to the dilemma. Maltz reorients the debate between
originalists and non-originalists. Advocates of both sides, he says, generally proceed
from three misguided premises: that originalism is linked to both judicial deference and
political conservatism; that originalism is the sole alternative to some less deferential
approach to judicial review; and that the question of „legitimacy‟ is the central
unresolved issue facing non-originalists theorists. This book challenges each of these
premises. First, going beyond the influential writings of authors such as Raoul Berger
and Robert Bork, he formulates the justification for originalist review and refines
originalist theory itself. Second, he argues that a pure originalist approach mandates
excessive judicial intervention under the Constitution. Third, he shows that even
leaving aside problems of legitimacy- most non originalists theorists have failed to
provide a sufficient functional justification for non originalist intervention.

Christopher Wolfe15, has divided the book into 2 parts; first being: The Founding and
Constitutional Interpretation and the second being: Twentieth-Century Judicial Power:
Practice and Theory. This book is an effort to extend and apply the “originalist”
position on constitutional interpretation and judicial review. The heart of this research
work is a labor made to compare and contrast the “traditional” approach of early
constitutional thinkers with the “modern” approach that has been dominant. While this
book consists of essays written on different occasions, they fit together easily and
coherently because they are all part of a larger effort to develop and extend the
approach described in earlier books about “originalism”. The author focused on the
question, “how should we read or interpret the Constitution?” and after examining how
the founders have answered this question, the author offered a brief description, by way
of contrast, of how more modern Courts and commentators answered it and hence

14
Rethinking Constitutional Law: Originalism, Interventionism & the Politics of Judicial Review
(University Press of Kansas, USA, 1994).
15
How to Read the Constitution: Originalism, Constitutional Interpretation and Judicial Power
(Rowman and Littlefield Publishers, USA, 1996).

10
offered some brief comments on the relation of the different answers to the power of
judicial review and the role of the Supreme Court in politics.

O.P. Gauba16, has introduced the idea of constitutionalism in order to keep the organs
of power within reasonable limits and provides a mechanism of control on arbitrary or
absolute power. Also the author has analyzed the sources of strain in the contemporary
constitutional practice. For instance, extraordinary vigilance of the press and
independent media may eclipse some organs of state power, yet it may tend to serve
public interest more effectively. Similarly, the recent spurt of „judicial activism‟ in
India may slightly obstruct the functioning of state machinery, yet it may be
instrumental to striking at the administrative lethargy and corruption. The Indian
Constitutional experience in the developing societies is also talked over in this book
and also an elaborated glossary of the major terms connected with „constitutionalism‟ is
mooted therein.

Andras Sajo17, has discussed in his book about the different mechanisms to restrict
government power through social self-binding, including different forms of the
separation of powers and constitutional review. Written in non-technical language and
using the most important English, American, French and German examples of
constitutional history, the book also examines East European (in particular, Russian)
and Latin American examples, in part to illustrate certain dead ends in constitutional
development. The author has explained that the Constitution is the nexus of
fundamental institutions prescribing the scope and rightful succession to ruling
positions and the authority to use force. The author then highlights the concepts of
constitutionalism by stating that Constitutionalism is the restriction of state power in
the preservation of public peace. As a whole, the author has focused upon the
constituent power of the Constitution in order to limit the governmental wings.

Kanahaiyalal Sharma18, has highlighted some of the burning issues that attract first
sight attention. Few of them are: eradication of poverty, eradication of ignorance,

16
Constitutionalism in a Changing Perspective (Segment Books, New Delhi, 1996).
17
Limiting Government: An Introduction to Constitutionalism (Central European University Press,
Hungary, 1999).
18
Reconstitution of the Constitution of India (Deep & Deep Publication Pvt. Ltd., New Delhi, 2002).

11
unemployment, population control, concentration and mal-distribution of wealth are to
be checked, cheap and speedy justice, fair, cheap and time-bound elections. The author
has divided his book into 4 parts and these parts further have been sub divided into
chapters. Part I- Analysis of Constitutional Provisions is the edifice that deals with the
provisions of the Constitution. Important provisions of the Constitution have
comprehensively and minutely scrutinized in analytical method in light of conceptual
framework and prevailing circumstances in the country. Part II- Reconstitution deals
with representative views for changes in or change in the Constitution itself. Grounds
for re-constitution or new Constitution have elaborately been discussed. Part III-
Proposed Constitution of Bharat contains important suggestions, which might have
been emerged as the result of pruning of the provisions of present Constitution and
grounds of re-constitution. Part IV gives in detail about the National Commission to
Review the Working of the Constitution (NCRWC). Section A deals with Introduction
to NCRWC and Section B gives Summary of Recommendations of the Commission as
given in the final report of NCRWC presented to the Government of India (GOI) on
31.03.2002.

Zoya Hasan, E. Sridharan and R. Sudarshan19, in their book explored the terms of
discourse in Indian constitutionalism and politics at the turn of the century and
millennium, the completion of fifty years of the existence of the Indian Constitution,
and a little over half a century of Indian independence. The book consists of the revised
and updated papers presented at the international conference on the India‟s
Constitution. The authors have beautifully discussed about the inner conflicts of
constitutionalism in the context of judicial review as well as basic structure. The
notions of „rights and justice‟ in India and its comparative approach has also been
discussed in this book. The book is divided into 5 parts in total. Part I deals with the
impossibility of constitutional justice by referring to Indian Constitutionalism.
Furthermore, the views upon Indian Constitution and Democracy are discussed. Part II
states the various organising principles such as „India‟s Secular Constitution‟,
„Stateness and Democracy in India‟s Constitution‟ and „the Inner Conflict of

19
India’s Living Constitution: Ideas, Practices, Controversies (Orient Longman Pvt. Ltd., New Delhi,
2002).

12
Constitutionalism: Judicial Review and Basic Structure‟. Part III highlights about
Rights and Justice on the basis of sex equality, liberty and privacy by making a
comparative approach to the Feminist Critique. Part IV is about the pursuit of social
justice and reservations. Lastly, Part V depicts the origins of electoral system,
decentralization and local government along with the legislative reservations for
women.

Randy E. Barnett20, has initiated his book by introducing with the title “Why Care
What the Constitution Says?”. The author has tried to find out that do people actually
bother as to what is so mentioned in the provisions of our Constitution. The book is
divided into four parts. Part I is the „Constitutional Legitimacy‟ which consists of – the
fiction of “we the people”: is the constitution binding on us?; Constitutional legitimacy
without consent: protecting the rights restrained by the people; and Natural rights as
liberty rights: retained rights, privileges or immunities. Part II of the book deals with
„Constitutional Method‟ wherein constitutional interpretation, constitutional
construction and judicial review are discussed in detail. Part III talks about
„Constitutional Limits‟. In this Part, the author highlights about the judicial review of
Federal laws; judicial review of State laws; the mandate of the Ninth Amendment and
the Presumption of Liberty. Last Part mentions about the „Constitutional Powers‟ by
enunciating the proper scope of Federal power; proper scope of State power and
judicial doctrines. Finally the author has concluded his research work by briefly
describing as to how we can resort to our lost Constitution.

Satya Prakash Dash21, provides in his book almost sixteen articles dealing with
constitutional and political dynamics of India. Due to its theoretical contextualization,
the articles are relevant to the present day and it is significant for its historiography. Its
lucid language enables the readers to explore into some of the controversial and
challenging interpretations of the Constitution of India. The book discussed some of the
important features of the Indian polity and it‟s functioning as well as analyses various
articles and its relevance to the prevailing political context. The author explorated

20
Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, United
Kingdom, 2004).
21
Constitutional and Political Dynamics of India (Sarup & Sons, New Delhi, 2004).

13
various contents, namely, nature and significance of Indian nationalism, thoughts on
the Constitution, Kesavananda Bharti Case: the Basic Structure approach, Political
Irrelevance in Constitutionalism, Indian Federalism, the Constitution and
Constitutionalism in India, the Democratic Process: Legislature and Legislators,
Socialism through Democracy, Secular Conception in Indian Democracy and Partyless
Government. The book is an interpretation of the Constitution of India, particularly, to
its controversial aspects. This book would be definitely useful to those interested in the
dynamics and operatives of the Indian Constitutional and Political system. It would also
be informative from the socio-political perspective of the study of Constitution.

Dennis J. Goldford22, originated serendipitously in the course of exploring what at

first appeared to be two distinct and independent topics: the originalism debate in
constitutional theory and the question of how we properly understand the nature of law
and constitutionalism. Exploring the originalism debate in depth leads to important
insights into the nature of law and constitutionalism, and those insights in turn
illuminate and alter the contours and premises of the originalism debate. The writer
agreed with the originalism that the purpose of a constitution is to bind the future to the
principles embodied in the text, but what he believe is the novel argument that the
originalist approach to constitutional interpretation cannot accomplish the goal. At the
same time, the author does not offer a brief for what is inelegantly known as „non-
originalism‟. Rather, he attempted to identify the structure of premises about
constitutional interpretation that generates the debate between originalism and non-
originalism precisely in order to move beyond that debate. In addition, at the root of all
of author‟s analysis, is the attempt to understand the remarkable phenomenon of a
people living in terms of a written text.

Sotirios A. Barber and James E. Fleming23, in his book is mainly concerned with
penultimate question: how to decide constitutional meaning, or which approach to the
meaning of the Constitution is best. The authors in this book are to focus on the
controlling practical issues of this complex debate in manner that will engage both the

22
The American Constitution and the Debate Over Originalism (Cambridge University Press, New
York, 2005).
23
Constitutional Interpretation: The Basic Questions (Cambridge University Press, New York, 2007).

14
specialist in constitutional theory and the informed general reader. The question of
whether the Constitution is a code of detailed historical conceptions or a charter of
abstract moral concept is central to the question of „how‟ to interpret the Constitution.
The writers depict that the interpreters who assume that the Constitution is designed
chiefly to limit government – negative constitutionalists – will interpret the
Constitution differently from positive constitutionalists – those who hold that the
Constitution‟s chief aim is to empower government (while still respecting certain
fundamental rights). Given the aim of this book, the writers bracket the problem of who
may engage in constitutional interpretation. People talk mostly about the Court when
illustrating arguments and findings, but these arguments and finding apply to any
interpreter, including legislatures, executives and ordinary citizens trying to decide for
themselves what the Constitution means. These issues regarding the normative
properties of the Constitution are crucial to the question of which approach to
constitutional meaning is best.

M.P. Singh24, in his book has highlighted each article of the constitution drawing from
the Constituent Assembly debates, the few decided cases and introducing a comparative
point of view wherever relevant. However, in this book there is an ample advocacy of
ideas on issues, which tickle the taste buds of a student of constitutional law. The
author in his book has firstly discussed the language of the provision, followed by a
chronological analysis of cases and then the editor‟s opinion on the position in law.
Cases are explained by briefly providing the facts, which highlight important issues,
stating the decision of the court often mixed with the editor‟s opinion on the decision.
The book is a comprehensive account of constitutional developments and explains its
enormous popularity as a text for studying and teaching constitutional law.

Sudhir Krishnaswamy25, has beautifully portrayed about the doctrine of basic

structure in his book. His work make two arguments: first, that the basic structure
review is an independent and distinct type of constitutional judicial review which
applies to all forms of state action to ensure that such action does not „damage or

24
Constitution of India (Eastern Book Company, Lucknow, 2008).
25
Democracy and Constitutionalism in India: A Study of Basic Structure Doctrine (Oxford University
Press, New Delhi, 2009).

15
destroy‟ basic features of the Constitution and secondly, that the basic structure
doctrine like other types of constitutional judicial review possesses a sound
constitutional basis and rests on a sound and justifiable interpretation of the
Constitution. The broadening scope of basic structure review via emergency, legislative
and executive powers have also discussed in this book. The author also touches the
legitimacy of the basic structure review in the light of three categories i.e. legal, moral
and sociological. In this way, the books depicts about the Indian Constitutional doctrine
evolved in the year 1973 thereby making it solid and permanent doctrine of the Indian
Constitution.

David A. Strauss26, began his work by asking a question: “Do we want a Living
Constitution?”. A Living Constitution is one that evolves, changes over time, and
adapts to new circumstances, without being formally amended. The answer has to be
yes: there‟s no realistic alternative to a living constitution. Whilst on the other hand,
there seem to be many reasons to insist that the answer to that question – do we have a
living constitution that changes over time? – cannot be yes. In fact the critics of idea of
living constitution have pressed their arguments so forcefully that among people who
write about constitutional law, the term “living constitution” is hardly ever used, except
derisively. In Chapter two, the author described the common law approach: how it
works and why it might be justified. Then in Chapter three and four, the writer showed
how two of the most important developments in our constitutional system are the
products not of the text of the Constitution and not of the original understandings, but
of a common law approach to the Constitution. Chapter five states that the living
constitution is only a central part of our law. Since, the idea behind a living constitution
is that the Constitution must change; the author in chapter six had explained how the
living constitution fits together with the formal amendment process that the written
Constitution prescribes.

Grand Huscroft and Bradley W. Miller27, deals with various essays in this volume
which includes contributions from the flag bearers of several competing schools of

26
The Living Constitution (Oxford University Press, New York, 2010).
27
The Challenge of Originalism: Theories of Constitutional Interpretation (Cambridge University
Press, New York, 2011).

16
constitutional interpretation, provide an introduction to the development of originalist
thought, showcase the great range of contemporary originalist constitutional
scholarship, and situate competing schools of thought in dialogue with each other. They
also make new contributions to the methodological and normative disputes between
originalists and non-originalists, and among originalists themselves. This volume is
divided into four parts; Part One is about the meaning of originalism and the evolution
of contemporary originalist theory, Part Two states the interpretation clause and
intention of the framers of the constitution, Part Three highlights upon curious concept
of „living tree‟ and the limits of interpretation and construction and lastly, Part Four
mentions the challenges and criticism on the various constitutional methods. In this
book, contemporary originalists harness the resources of linguistic, moral and political
philosophy to propose methodologies for the interpretation of constitutional texts and
provide reasons for fidelity to those texts.

Jack M. Balkin28, has divided his book into 3 parts i.e. Fidelity, Construction and
Change. Part I (Fidelity) encompasses the issues like: Framework Originalism, Why
original meaning?, constitutional faith and constitutional redemption and many more.
This book offers a constitutional theory, “framework originalism”, which views the
Constitution as an initial framework for governance that sets politics in motion and that
the people must fill out over time through constitutional construction. Part II
(Construction) talks about the notions of privileges and immunities, equality before the
law and the platform for persuasion. The book also offers an associated theory of
interpretation and construction, the method of text and principle. The method of text
and principle requires fidelity to the original meaning of the Constitution and in
particular, to the rules, standards and principles stated by the Constitution‟s text. Part
III (Change) deals with the rethinking living constitutionalism and its legitimacy. The
author states that the constitutional change is the product of this process of debate and
striving over how to continue the plan. People try to persuade each other about the best
meaning of constitutional text and principle in current circumstances. These debates
and political struggles also help to generate people‟s investment in the Constitution as

28
Living Originalism (Harvard University Press, England, 2011).

17
their Constitution, even if they never officially consented to it; and they create a
platform for the possibility- but not the certainty – of the Constitution‟s redemption in
history.

Lawrence B. Solum and Robert W. Bennett29, have different attitudes towards what
is called originalism in constitutional interpretation. Lawrence Solum advocates a form
of constitutional originalism; Robert Bennett‟s views align with a version of living
constitutionalism. But the essays reveal that this contrast shrouds a host of
complexities, both in the definitions of the concepts and in approaches to interpretation.
Together the essays provide an introduction to the contemporary debates about the role
of original understanding in constitutional interpretation. Solum‟s essays suggest there
is nothing inherent either in originalism or in positions on judicial activism that needs
to be identified with positioning on the political spectrum. Both Bennett and Solum are
convinced that this is so regardless of how one is aligned in the clash of their views on
originalism. This counsels a more general point about the growing body of literature on
interpretations in the law. The literature reflects many more than two positions. This
exchange introduces the subject and explores a wide range of the salient issues. The
authors hope that it prepares the serious student for explorations more broadly, with
both basic understanding of what is at stake and sophistication about many of the
intriguing questions along the way.

Frank B. Cross30, highlighted in his book that how the originalism acted as a device
for interpreting the Constitution. He opined that many constitutional provisions do not
mean today what their framers thought they meant, yet originalism has great appeal.
While originalism long had severe critics, especially among liberals, this seems to be
changing now. The position is not universal, as number of law professors rejects
„originalism‟ by calling it “bunk”. However most concede that originalist interpretation
is at least sometimes useful, and many argue that it should serve as the primary basis
for constitutional interpretation. This book does not focus on the theory of originalism,
on which countless articles and books have been written. Rather, the author focused on
the practice of originalism and how that informs us of the value of the approach. The
29
Constitutional Originalism: A Debate (Cornell University Press, London, 2011).
30
The Failed Promise of Originalism (Stanford University Press, California, 2013).

18
author also suggested that originalism is not limited to the original framers but would
also extend to the later amendments to the Constitution. The change in word‟s meaning
over time should not alter the interpretation of its earlier meaning. When a law
continues in force over time, so does the original meaning of its words. Originalism
simply calls for the legal text to be interpreted according to its then contemporary
meaning, which is a standard approach to legal or other forms of textual analysis. The
process of interpretation arguably calls for nothing else. The framers apparently
believed that the Constitution should be construed to have the meaning attributed to it
by some group of persons at the time it was drafted and adopted.

John O. McGinnis and Michael B. Rappaport31, have discussed about the notion of
originalism as well as its discontents in present scenario. In the beginning of book, the
super majoritarian theory of constitutionalism is highlighted in relation to the concept
of originalism. In the middle of book, original methods of originalism and original
methods versus constitutional construction is elaborately discussed. The authors deal
with very fundamental questions like: What is the precise nature of an originalist
method of interpretation? Isn‟t it wrong for the living to be governed by the dead hand
of the past? How can an originalist jurisprudence address the hundreds of judicial
decisions inconsistent with original meaning that are now deem the law of the land? In
this book, authors present a new normative defense of constitutional originalism that
connects this interpretive method directly to the concept of a good constitution. They
argue that originalism advances the welfare of the present day people as it promotes
constitutional interpretations that are likely to have better consequences today than
those of non originalists‟ theories. Likewise, they have connected the benefits of a
desirable constitution and the proper theory of constitutional interpretation to the
virtues of the constitution making process. Lastly, due attention is made as to how the
future will be with the imagining originalism.

Richard H. Fallon32, divided his book into 3 parts. Part I mentions the Individual
Rights under the Constitution i.e. freedom of speech, freedom of religion, protection of

31
Originalism and the Good Constitution (Harvard University Press, England, 2013).
32
The Dynamic Constitution: An Introduction to American Constitutional Law and Practice
(Cambridge University Press, New York, 2013).

19
economic liberties and other fundamental rights as well as equal protection of the laws.
Part II talks about the constitutional separation of powers wherein he highlights the
executive power and judicial power. Part III enunciates further issues of constitutional
structure and individual rights. This book provides an introduction to contemporary
constitutional law for readers who are not, or not yet, lawyers. Although the book
principally focuses on the present, it locates current constitutional doctrines and debates
in historical context. Most chapters include a brief account of what the authors and
ratifiers of a particular constitutional provision apparently had in mind. The author also
described the Supreme Court‟s historical efforts to interpret the Constitution‟s language
before offering more detailed discussion of contemporary law. At some points, this
book tried to stand outside of constitutional arguments and explain them
dispassionately. There would be no better indication that this book has succeeded in
introducing constitutional law successfully than if the reader, at certain points, feels
both provoked and empowered to argue with author‟s judgments.

Aoife O’ Donoghue33, has given elaborated views on the concept of constitutionalism.

The norms of constitutionalism are discussed in this book like rule of law, division of
power and democratic legitimacy. The author has described the idea of
constitutionalism in a detailed way by providing all the features of constitutionalism.
How the constitutionalism can be understood in global constitutionalisation has also
been described in this book. Constitutionalism is defined and explained in its present
scenario among the various countries in this book by the writer. The author tries to
enunciate about the relationship between domestic and global constitutionalism. The
research in this book revolves around the constituent and constituted power and their
relationship with constitutional governance. The author also touched upon various
theories of global constitutionalisation and the theories of constitutionalism in global
constitutionalisation. Finally, the author debated about constitutionalisation in the
context of global governance and to whom does the global constitutionalism address:
constituency or community?.

33
Constitutionalism in Global Constitutionalisation (Cambridge University Press, United Kingdom,
2014).

20
John W. Compton34, has beautifully portrayed that how religion seems to go hand in
hand with veneration of the Constitution and its framers. This book states that devout
believers overwhelmingly endorse the view that the Constitution should be interpreted
“as originally written” and socially conservative politicians promise to oppose the
nomination of judges who are not dedicated to the original document and its original
meaning. The author argued that the tension between nineteenth-century mores and
Founding era constitutional commitments holds the key to a fuller understanding of
American constitutional developments and in fact this tension was perhaps the most
important force shaping American constitutional development in the period between the
Founding and the 1930s. Moreover, it is only by recovering this tension that the author
can arrive at a satisfactory answer to the question of why a traditional constitutional
order between jurisdictions could be safely entrusted to the judiciary, where any
constitutional disputes would be impartially resolved. The author mentioned that by the
turn of twentieth century, the contrast between the judiciary‟s deferential attitude
towards moral regulation and its rigid opposition to industrial regulation had begun to
undermine the legitimacy of the traditional order‟s organizing concepts, thus paving the
way for the reconceptualization of the Constitution as a “living” document whose key
provisions should be understood to evolve in tandem with changing social and
economic conditions.

M.P. Jain35, the author has touched upon the current developments in constitutional
law. Adequate references have been made to foreign constitutions like USA, UK, and
Canada so as to give a comparative perspective on the Indian Constitution. The author
provided with the analytical treatment of the provisions of Constitution. All important
points, case laws have been fully cited. Relevant facts of important cases and summary
of law laid down there in, have been given in the body of the text so as to enable the
readers to better understand the subject without having to resort constantly to the
reports. The author highlighted about the notion of „constitutionalism‟ in the beginning
of his book thereby stating that how the transformations in interpreting the Constitution
have been evolved from time to time. He has also differentiated between various terms

34
The Evangelical Origins of the Living Constitution (Harvard University Press, London, 2014).
35
Indian Constitutional Law (Lexis Nexis, Gurgaon, 2014).

21
like „constitution‟, „constitutional law‟ and „constitutionalism‟, which tends to give
more in-depth and conceptual knowledge to the readers. The idea of originalism and
living constitution can be easily understood from his book through the way he has
written this comprehensive study.

Kent Greenawalt36, has divided his book into four parts and it is the third volume
about the legal interpretation of the Constitution. The main endeavour in this volume is
to focus on general issues about constitutional interpretation. This book attempts to
cover fairly broad subject matters in all or most of the important aspects and the author
believes that it would provide a much better test of what works and what doesn‟t and of
how constitutional issues vary from one another. Three aspects of this volume are
important. Firstly, that the chapters on the specific subjects are definitely not as well
researched and comprehensive as would be a book or long article on the same topics.
Rather the aim of the author is to afford the reader a complete enough coverage to
reflect on what interpretive strategies make sense. Secondly, it would be quite feasible
for the reader to assess the general themes by reading the first five chapters alone or
reading those and one or two others that cover subjects in which a person has special
interest. Thirdly, it is pointed out that chapters‟ six to twelve portray many of author‟s
assessments about particular issues. Nevertheless, the author believes a genuine test of
claims about how interpretation does and should proceed requires illustrations that
cover broad ranges of constitutional issues, including the outcomes one finds
persuasive. That is the overarching reason and aspect for this book‟s inclusion of
chapters on various subjects along with appraisals of desirable approaches and
outcomes.

Dieter Grimm37, begins his work by introducing the origin and transformation of the
concept of the Constitution. Conditions for the emergence and effectiveness of modern
constitutionalism, basic rights in the formative era of modern society and the notion of
constitution in historical perspective are beautifully portrayed in this book. While
focusing on the concept of Constitution, the writer also mentions about the functions of
Constitutions and various guidelines that are essentially required for constitutional
36
Interpreting the Constitution (Oxford University Press, New York, 2015).
37
Constitutionalism: Past, Present and Future (Oxford University Press, New York, 2016).

22
reform. The idea of constitutional courts, constitutional interpretation at the interface of
law and politics, constitutional adjudication and democracy is also well explained.
Then the author inclines towards the future of constitutionalism by discussing the
question that can democracy by bargaining be constitutionalised? Lastly, the author
enunciates about the Constitution in the process of de-nationalisation as well as the
achievement of constitutionalism and its prospects in a changing world.

Sujit Choudhary, Madhav Khosla and Pratap Bhanu Mehta38, in their book
discussed about the domestic focus on the Constitution and the institutional role of the
Supreme Court within India‟s democratic framework. Recent years have also witnessed
enormous comparative interest in India‟s constitutional experiment. The Oxford
Handbook of Indian Constitution is a wide-ranging, analytical reflection on the major
themes and debates that surrounds India‟s Constitution. It also provides a
comprehensive account of the developments and doctrinal features of India‟s
Constitution, as well as articulating frameworks and methodological approaches
through which studies of Indian Constitutionalism and Constitutionalism more
generally, might proceed. The book is divided into 8 parts: history, negotiating
constitutionalism, constituting democracy, separation of powers, federalism, rights-
structure and scope, rights-substance and content and lastly, the government‟s legal
personality. Its contributors range from rigorous, legal studies of provisions within the
text to reflections upon historical trends and social practices.

Chintan Chandrachud39, in his book examined the promise of the new model against
its performance in practice by comparing judicial review under the Human Rights Act
(HRA) of the United Kingdom to an exemplar of the old model of judicial review, the
Indian Constitution. Unlike systems of parliamentary sovereignty and judicial
supremacy, Human Rights Act of UK promised a new „balanced‟ model for the
protection of rights which conferred courts with a limited power of review over
legislation. Under this new model, rights-based decision making was expected to be
balanced amongst courts and legislatures, rather than lopsided in favour of either.

38
The Oxford Handbook of The Indian Constitution. (Oxford University Press, New Delhi, 2016).
39
Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom (Oxford
University Press, New Delhi, 2017).

23
Indian courts, on the other hand, have always been constitutionally entrusted with the
power to strike down primary legislation enacted by the Union and State legislatures. It
argues that although the Human Rights Act fosters a more balanced allocation of
powers between legislatures and courts than the Indian Constitution, it does so for a
novel reason. Balanced constitutionalism is not achieved through the legislative
rejection of judicial decision making about rights. Instead the nature of remedy under
the Human Rights Act enables British courts to assert their genuine interpretations of
rights in situations in which Indian courts find it difficult to do so.

Ilan Wurman40, states that from Clinton to Bush, Bush to Obama and now Obama to
Trump; the presidency changes hands and the forces of politics shift positions on
practically every question of structural constitutional law. This book attempts to
answers the questions like: does the Constitution have a fixed, objective, ascertainable
meaning, applicable to the changing economic and social realities of succeeding
generation? Or does a five judge majority of the Supreme Court have a legitimate right
to read into the law its own notions of justice, equality and social change? The author
answers the title of the book “What is that debt against the living?” by replying that the
Constitution contains enduring principles of free government, and not a list of specific
applications. When we face constitutional issues today, we do not ask what the Framers
would have done. We ask what principles they enacted, and how those principles apply
to the often very different circumstances now. The book lays out a way for judges to
achieve grave responsibilities, i.e., to uphold and enforce constitutional limits when
they apply even in the face of government power and popular opinion as well as to
stand back and allow democratic politics to govern when the Constitution is silent, even
when the judge‟s own political preferences go the other way.

Maurice Adams, Anne Meuwese and Ernst Hirsch Ballin41, in their book talks about
as to how a government should be regulated in its powers in order to effectuate the
fundamental principles of a political regime as it is usually a national constitution that

40
A Debt Against the Living: An Introduction to Originalism (Cambridge University Press, United
Kingdom, 2017).
41
Constitutionalism and the Rule of Law: Bridging Idealism and Realism (Cambridge University Press,
New York, 2017).

24
shapes constitutionalism in concrete legal terms. The authors give a more abstract
definition, which applies not only to nation states but also to a post-national order.
They identify constitutionalism as „an overarching legal framework that determines the
relationship of the different levels of law and the distribution of powers among their
institutions‟. The book focuses upon two important questions: “What makes a „living
constitution‟ or under what conditions can a rule of law instrument be considered
effective?” and “Is a constitution that purposely takes „light touch‟ approach to actually
imposing rule of law values more or less effective in putting the ideal behind those
values into practice?” In the introductory chapter, the authors discuss the distinction
between idealism and realism and the tension it inevitably endangers, as it is presented
in political theory and legal philosophy. In the following two sections, they will
consider how this tension-fraught relationship presents itself in the constitutional and
rule of law. Finally, they put flesh on the bones by presenting and connecting its
different contributors and by structuring this volume.

ARTCILES IN JOURNALS AND MAGAZINES

William H. Rehnquist42, discusses the definition of „living constitution‟ as given by

different Professors. The writer states that many publications are there talking about
„living constitution‟ but none gives the comprehensive definition about it. The author
mentions that the framers of the Constitution wisely spoke in general language and left
to succeeding generations the task of applying that language to the unceasingly
changing environment in which they would live. In this article, the writer tends to take
the opinion of other people as well about the notion of living constitution. Other people
opined that because of the general language used in the Constitution, judges should not
hesitate to use their authority to make the Constitution relevant and useful in solving
the problems of society. However, according to the author, it is impossible to conclude
that the framers intended the Constitution itself to suggest answers to the manifold
problems that they knew would confront succeeding generations. Focusing on these
aspects, the author also related „living constitution‟ with „judicial review‟ and with the
concept of „constitutionalism‟. The author, as a whole, concentrates on a point that the

42
“The Notion of Living Constitution” 54 Texas Law Review (1976).

25
Constitution should allowed to change in order to overcome the problems arising in
society but the limitations are indeed to be placed upon both federal and state
governments in the form of both division of powers and express protection of
individual rights.

Michael Moore43, has written this article as a letter, when he was invited to some
conference. He usually construes the word in a normative injunction. The author states
that one of the things in which he had been interested, as he had listened to his
preceding panelists is how they interpret by their actions, this authoritative text. This
article focuses on the debate between those who want to interpret the Constitution by
its text and have to say something about what the text is i.e. Textualists and those who
want to interpret it by the intentions with which that text was authoritatively uttered,
what is called Intentionalist Interpretation. First of all, the author highlights as to what
is intentionalism? He urges that any speaker, including constitutional speaker, might
have two quite different kinds of intentions and quite different levels of force that one
might give to either such intention in one‟s overall theory of interpretation. Then he
mentions that some textualists urge that under a stringent plain meaning rule, wherever
the meaning of some constitutional text is plain, that is both sufficient and necessary to
overturn a statute; whereas where the constitutional text‟s meaning is not plain, the
statute survives. Hence, the author has discussed in detail about the analytic distinction
between intentionalism and textualism in his article.

Robert Post and Reva Siegel44, aims in their article to redirect scholarship away from
the methodological principles of originalism as a jurisprudence and toward the social
forms of originalism as a political practice, in the brief that reorienting analysis in thus
way will provide scholars a better understanding of the dynamics that have enables
modern originalism to rewrite the face of the Constitution. There is a deep tension
between the jurisprudence and practice of originalism. As a political practice that
developed in the 1980‟s, originalism seeks, more or less blatantly, to alter the
Constitution to infuse it with conservative political principles. The ovious tension

43
“Originalist Theories of Constitutional Interpretation” 73 Cornell Law Review (1988).
44
“Originalism as a Political Practice: The Right‟s Living Constitution” 75 Fordham Law Review
(2006).

26
between the jurisprudence and practice of originalism is resolved by a conviction of
authenticity, which produces the belief that contemporary conservative values vindicate
fundamental constitutional principles in ways that transcend political dispute and
correspond exactly to past expressions of democratic will. Atlast the author stated that,
viewed as an abstract jurisprudence, originalism seems diametrically opposed to the
idea of living constitutionalism that has been at the core of progressive constitutional
thought.

Bruce Ackerman45, begins with an article by asking a question: are we a nation?

Highlighting upon this very aspect, the author studied about various other countries as
to how the notion of living constitution is prevailing there. Many landmark verdicts like
Roe v. Wade46, Slaughter-House case47, Brown v. Board of Education48, Marbury v.
Madison49 and Griswold v. Connecticut50 and many more have been discussed in depth
in this article. The author wants to emphasize the historical character of his critique. For
him, the „living constitution‟ is not a convenient slogan for transforming our very
imperfect Constitution into something better than it is. While the effort to make the
Constitution into something truly wonderful is an ever-present temptation, the problem
with this high-sounding aspiration is obvious: there are many competing visions of
liberal democratic constitutionalism, and any one of them should not hijack the
Constitution. The aim of interpretation is to understand the constitutional commitments
that have actually been made by the people in history, not the commitments that one or
another philosopher thinks they should have made.

Kermit Roosevelt51, in the first paragraph of his article had debated that originalists
and living constitutionalists is generally considered one of the most important current
battles over how the Constitution should be interpreted. The author then provides for
the standard arguments for both „originalism‟ and „living constitution‟. It mentions that

45
“The Holmes Lectures: The Living Constitution” 120 The Howard Law Review Association (2007).
46
410 U.S. 113 (1973).
47
83 U.S. 36 (1873).
48
347 U.S. 483 (1954).
49
5 U.S. 137 (1803).
50
381 U.S. 479 (1965).
51
“Originalism and the Living Constitution: Reconciliation” 7 American Constitution Society for Law
and Policy (2007).

27
the judiciary‟s role should be minimized, if „originalism‟ as an approach is to be
considered. The author opines that it is possible for the meaning of a constitutional
provision to remain constant while its application change, as there are some „words‟
which clearly announce that their range of application is flexible whilst other words
suggest that their applications are meant to be fixed. Different Amendments and
Clauses of US Constitution are also highlighted in this article in support of Constitution
to remain flexible. Justification for living constitution is provided therein and living
constitutionalists argue that originalism should be rejected because it would allow
practices they now think are unjust. Lastly, the author concludes that the two
approaches should be synthesized and should lead to the same interpretive results.

Upendra Baxi52, in his article explores the task of social theory and philosophy of
Indian constitutionalism at work. But these presuppose a stable discourse concerning
the notions of constitutions and constitutionalism, which is only partially. The author
tries to explain that, in an elementary sense, a constitution is something that stands
„constituted‟ by the labours of some people and processes. The article also enunciates
about the relationship between „constitutive‟ and „constituted‟, which stands in a
dialectical relation. It questions that does the constitutive limit the horizons of the
constituted? And how and in what ways, that which is constituted acts backs upon the
agency of the constitutive? Furthermore, the article states that the constitutions furnish
arenas of contested relationships between state and civil society. Therefore, it is
necessary to differentiate, at least, between three interactive meanings of constitutions
as texts, constitutional law and theory/ideology („constitutionalism‟) and the author has
elegantly named these three as C1, C2 and C3. In the rest of the article, the author
makes general and necessary distinctions among these three interactive meanings of
Constitutions.

Jack M. Balkin53, in his article introduces the two concepts by mentioning that
„originalism‟ and „living constitution‟ are two sides of the same coin. The first part of

52
“Outline of a „Theory of Practice‟ of Indian Constitutionalism” 1 Politics and Ethics of Indian
Constitution, (2008).
53
“Framework Originalism and the Living Constitution” 103 Northwestern University Law Review
(2009).

28
this article offers a short summary of what the author believes is the best account of
original meaning originalism and what the author regard as its central purpose: setting
up a basic structure for government, making politics possible and creating a framework
for future constitutional construction. The second part of this article tries to
rethink what we mean by “living” constitution. The author believes that living
constitutionalism, properly understood, implies something different from what most
advocates and critics of living constitutionalism have assumed and it is not primarily a
theory about how judges should interpret the Constitution. The writer concludes by
saying that the fact that the Constitution is in all of our hands, and not simply the hands
of the Justices, is the reason why we have a living Constitution.

Lawrence B. Solum54, aimed to clarify the debates about „originalism‟ and „living
constitutionalists‟ by providing a history of contemporary originalism and then
developing an account of the core or focal content of originalist theory. The author
made a good attempt to find out the actual answer as to what „originalism‟ and
„originalist‟ mean. This deep ambiguity in the meaning of originalism is further
complicated by the sociology of the legal academy and the politics of judicial
interpretation. The author then talked about two new terms: „living originalism‟ and
„new originalism‟. Next the author applied the efforts to debate between originalists
and living constitutionalists. Questions like: are living constitutionalism and
originalism competing theories? Are some versions of originalism consistent with
living constitutionalism? Are other versions incompatible? etc. are discussed by the
author. Once the question is reformulated in this way, it becomes clear that there are
both compatibilist and incompatibilist stories to tell about the relationship between
living constitutionalism and originalism. Atlast the author concludes by saying that
originalism and living constitutionalism can be debated on the intellectual merits, but
that will only occur is participants in the debates view these theories in their best light
and apply the principle of charity to the arguments of their opponents.

54
“What is Originalism? The Evolution of Contemporary Originalist Theory” 5 Georgetown University
Law Center (2011).

29
Alex T. Magaisa55, in his article demonstrates the dearth of constitutionalism by
analyzing some court decisions and constitutional amendments that have effectively
eroded the limits on governmental power. This article also warns that a narrow focus on
constitutionality can mean that instead of the constitution being the supreme legal
document controlling the exercise of state power, it simply becomes an instrument for
autocratic control, legitimizing rather than preventing arbitrary power – the very
antithesis of constitutionalism. This article also demonstrates that constitutionality is
not enough and that to promote democracy, it is necessary to implement the principle of
constitutionalism. Overall this article advocates a serious re-evaluation of the collective
attitude and approach towards the constitution; that in making it, concern is not only in
defining what is constitutional but also in ensuring that those constitutional clauses
conform to and advocate the principles and values that underpin constitutionalism.

Lawrence B. Solum56, in this article argued that contemporary originalist

constitutional theory is consistent with reliance on extra-constitutional sources in
certain circumstances. He established a framework for revaluating the use of extra
textual sources. That framework categorizes extra textual sources and explains their
relevance to constitutional interpretation (the meaning of the text) and constitutional
construction (elaboration of constitutional doctrine and decision of constitutional
cases). The writer in his article established the relationship between originalism and
extra textual sources of constitutional law. The author conclude by applying the
framework to a question: can vice presidents preside over their own trial upon
impeachment? A negative answer to this question is consistent with an originalist
constitutional theory that carefully cabins the use of extra textual sources in
constitutional interpretation and construction. The author is mainly engaged in a
concept that in constitutional construction, originalism endorses a principle of
constraint: our constitutional construction must reflect the communicative content of
the text and may not contradict that content.

55
“Constitutionality versus Constitutionalism” 4 OPENSPACE Journal (2011).
56
“Originalism and the Unwritten Constitution” 13 Illinois Law Review (2013).

30
Keith E. Whittington57, in his article conceptualizes the theory of originalism.
Originalism first came to prominence in the 1970‟s and 1980‟s as conservative critics
reacted to the decisions of the Warren Court and the Reagan Administration embraced
originalism as a check on judicial activism. A second wave of originalism has emerged
since the late 1990‟s, responding to earlier criticisms and reconsidering earlier
assumptions and conclusions. This article assesses where originalist theory currently
stands. It outlines the point of agreement and disagreement within the recent originalist
literature and highlights the primary areas of continuing separation between originalists
and their critics. While discussing the points of agreement, the writer in detail
highlights about the original meaning and original intent, expected applications, rules
and standards, judicial discretion, judicial deference and lastly, constitutional pluralism;
whilst discussing the points of contention, the author embarks upon justification for
originalism and also the relationship between originalism and judicial review. The
questions of how important constitutional interpretation should be to the developmental
of constitutional law and whether we should remain bound to the founders‟ text are
central to the continuing disagreement between originalists and their critics.

Rebecca Wilkinson58, starts his article by discussing that there are some provisions in
Constitution which leaves no room for interpretation, whilst there are some clauses in
the Constitution which are couched with general phraseology. The author tries to give
justification for the originalist approach to the Constitution by limiting the role of
judiciary. Opinions of various jurists on non-originalist approach have also been
highlighted. Lastly, reasons have been provided in this article that why living
constitution approach should be adopted. Like the framers might have intended the
Constitution to be a living document; general flexible provisions were used to ensure
that the Constitution would endure societal change and adapt to various crises of human
affairs; original meaning of the Constitution was associated with problems that arose at
that time, which are quite different from today‟s problems; people were not necessarily
wiser than they are now; living Constitution is preferable because it ensures that the
Constitution applies to contemporary society and moreover, originalists suggest that

57
“Originalism: A Critical Introduction” 82 Fordham Law Review (2013).
58
“Interpreting a Living Constitution” 3 North East Law Review (2015).

31
constitutional amendments could achieve the same goal more democratically by
adapting to a changing Constitution – Living Constitution.

Catherine L. Langford59, mentions that the use of the “living” metaphor, the
organizing concept around which public debate has resolved for several centuries, is a
reflection of political, legal, scholarly and lay desires to enable the Constitution to
adapt to shifting social needs. Rather than view the text of the Constitution as the
means through which the U.S. governmental system was constructed, the Constitution
became an agent, which acts as guardian on the people‟s behalf. The writer opines that
as the public at large accepted the “living” metaphor, a rhetorical shift occurred,
deflecting public understanding of the Constitution as a static document not easily
altered and ignoring judicial discretion to adjudicate the law. Lastly, the author states
that rhetorically construing the Constitution as “living” liberates the people from
enacting government, being knowledgeable about political process or controversies,
and being responsible for governmental failings or wrongdoings.

Anil K. Mohapatra60, in his paper wishes to evaluate the promises and performance of
the Constitution of India as envisioned by the makers of the Constitution of the largest
democracy. The writer mentions and discusses the views of some of the eminent Indian
leaders (M.K. Gandhi, Jawaharlal Nehru and B.R. Ambedkar) regarding the
Constitution of India. The article states that the study of „Constitution‟ has remained a
neglected topic in politics but the constitutional question has received an increasing
attention these days across the world since „political conflicts have increasingly been
expressed in terms of calls for constitutional reforms‟ and judiciary is asked to interpret
the Constitution to provide justice. The author examines how far the Constitution of
India has been able to accommodate, reflect and bring the desired changes, what are the
grey areas and how the Constitution has been adaptive to the incremental challenges of
developments and circumstances through amendments that have scored a century in
2015.

59
“The Living Constitution: Origins and Rhetorical Implications of the Constitution as Agent” 15
Communication Law Review (2015).
60
“Constitution of India: An Instrument of Social Change” 5 Odisha Law Review (2016).

32
Richard F. Duncan61, states that the purpose of this article is to focus on the part of
Justice Scalia‟s incredible legacy that concerns the so-called “Great Debate” in
constitutional law between originalism and the living constitution. The author focuses
particularly on Justice Scalia‟s argument that the Living Constitution is the greater evil
because it substitutes the rule of unelected judges for the rule of law. Furthermore, the
author discusses about Scalia‟s vision of original understanding originalism is not a
vacuous call for total judicial disengagement rather Scalia believed that written
Constitution „says what it says and doesn‟t say what it doesn‟t say‟. The author,
highlights when the Constitution speaks, it is the duty of the court to practice judicial
engagement and apply the Constitution‟s percepts to decide cases governed by its
original meaning, it must do so and when the Constitution is silent, still, it is the duty of
the Court to practice judicial restraint and permit Parliament and State Legislatures to
make laws within their respective powers. At last, the writer enunciates by saying that
the Court‟s job is to apply the Constitution and not to write the Constitution.

Andrew Coan62, tries to answer the question about the dichotomy between living
constitutionalism and originalism on the ground that our understanding of what is
„original‟ is itself a changing phenomenon. In this article, the author sketches a brief
stylized narrative explaining how this dynamic has played out in constitutional theory
over last decades. The author explores some of the ways that external political forces
and shifting understandings of constitutional history shape the evolution of
constitutional theory and vice-versa. The author mentions at the outset the three
caveats: Firstly, the article is divided into two periods i.e. “the era of old originalism”
and “the era of new originalism”. The author used these labels because of the evolution
of originalism. Secondly, the author makes no pretense of comprehensiveness, nor does
any means to suggest that the episodes and theorists, which are discussed, are the most
important during the periods covered in this article. Thirdly, at various points, he
attributes the changes in constitutional theory to political and ideological forces and in
doing so, he do not mean to impute conscious ideological motives to any constitutional

61
“Justice Scalia and The Rule of Law: Originalism vs. The Living Constitution” 29 Regent University
Law Review (2016).
62
“Living Constitutional Theory” 66 Duke Law Journal (2017).

33
theorist or historian, unless explicitly noted. At last, he draws casual connections
between constitutional history, politics, and constitutional theory, without any need for
recourse to subterfuge, opportunism, or bad faith.

ARTICLES IN NEWSPAPERS AND PERIODICALS

Armanda63, believes that it will be useful to discuss the major dispute that is said to
divide the two major schools of Constitutional interpretation, Originalists and Living
Constitution proponents. Since the author rejects the idea that proponents of a Living
Constitution are not originalists, in the sense that the idea of a Living Constitution is to
promote original Constitutional purpose to current circumstances. The author in this
article seeks to understand the original purpose of the Constitution, and its specific
provisions, and discern how best to serve that purpose in the case then presented. The
author believes that the proper function of Constitutional interpretation does not entail
reading the Constitution as one reads a statute – it requires more than a formalized
reading of the text and search for specific findings of the original understanding of the
specific text in question and the applicability to the case at hand. The author opines that
it requires a unifying approach, one that seeks to read the Constitution as a whole,
harmonizing the components parts of the Constitution, the empowering provisions, the
limiting provisions, the individual rights created and preserved. It requires
understanding the purpose of the creation of a third coequal branch, the judicial branch,
with the attendant common law judicial powers and restraints.

Ronojoy Sen64, in his article discusses about Dr. B.R. Ambedkar‟s speech which was
delivered a day before Constitution was adopted. The author made a comparison
between Indian and American Constitution with regard its amendment procedure. The
story of amendments and the turf battle between Parliament and the courts for custody
of the Constitution is still a continuing one. The writer believes that the tension over
who hold the key to the Constitution is going to remain so long as the power to amend
is in the hands of Parliament and the courts have the authority of judicial review. The
Emergency showed the danger of the government of the day subverting the

63
“On Constitutional Interpretation: Originalism v. A Living Constitution ?” Daily Kos, July 24, 2005.
64
“India‟s Living Constitution” The Times of India, January 23, 2010.

34
Constitution and its principles. But its aftermath also showed that reckless tampering
would not go unchallenged. That is what makes the Constitution a touchstone for
Indian democracy, however mixed the quality of our politics and leadership might have
been since 1950. The writer articulates his article by discussing an amendment i.e. 93rd
amendment in 2006, which enforced reservation in unaided educational institutions,
came in the backdrop of a Supreme Court ruling putting a check on state regulation of
admission procedures of private institutions.

Bharat Bhushan Prasoon65, states that the visionaries designed and modeled the
Constitution of India after borrowing from the best the world over. The author
discusses about the significance of our Constitution and the efforts of all the members
of Constituent Assembly. He enunciates that the members of Constituent Assembly
embodied talent, scholarship and performance and it was, in fact, the congregation of
best of the brains of the times. It assemblage on August 14, 1947 was as a sovereign
body and successor to the British Parliament‟s authority in India. The article highlights
that the desire of the Constituent Assembly was to have a Constitution which is
dynamic and vibrant in keeping with the changing times and lives of the people of
India. The author mentions about the various principles that were being borrowed in
order to frame the best and lengthiest Constitution. Observance of Law Day today itself
is a way to rededicate ourselves to the ethos of the Constitution and remember the
founding father‟s legacy who always intended to make India‟s Constitution as a living
and organic document that can be changed in its interpretation as and when change in
time is needed.

Suhrith Parthasarathy66, in his article in a newspaper talks about the recent judgment
that leads to prove India‟s Constitution as a living Constitution. He highlights upon
Justice K.S. Puttaswamy (Retd.) and anr. v. Union of India and ors.67 judgment, which
supports Article 21 thereby proving it to be one of the provisions of Constitution of
India, which is living in itself. The author also discusses the various other landmark
cases that has influenced to bring a twist in the decision of this recent judgment. The

65
“A day to celebrate our Constitution” The Tribune, November 26, 2015.
66
“The Constitution, refreshed” The Hindu, August 26, 2017.
67
(2017) 10 SCC 1.

35
author comments on this recent judgment by saying that in doing so, judges have not
only consigned some of the court‟s most regressive judgments to the dust heap of
history, but have also delivered a rousing affirmation of the critical place that the right
to privacy enjoys in the penumbra of liberties that the Constitution of India guarantees.
The article revolves around this judgment in order to curb the thinkers of originalists
and supporting the living constitutionalists who affirms the Constitution of India to be
changed in its interpretation and application with the change in time and demands of
the people in society.

1.4 RESEARCH GAP

After reviewing and analyzing the literature available on the topic “Originalism vis-à-
vis Living Constitution in India: An Analytical Study”, the researcher feels that the
research in the area of nexus between originalism and living constitution is scarce.
Because most of the authors have just explained about the general notion of
„originalism‟ as well as „living constitution‟. Some of the authors have made the
conceptual study about the originalism, living constitution, original intent and living
intent. However, none from these scholars has touched upon the concept of
constitutionalism in context of originalism and living constitution. Also, no study has
been made about the applicability of originalism and living constitution in India and
how this transformation from „original intent of the framers‟ to „living constitution‟ has
come into being. Moreover none of the authors have elucidated as to what factors are
responsible to bring about change from „original constitution‟ to „living constitution‟.
Therefore, the researcher is to abridge the gap left by the various scholars that what are
the reasons for shifting from originalism to living constitution and rational nexus
between them with regard to constitutionalism in India. In order to understand the
relation between „originalism‟ and „living constitution‟ of India, the researcher will try
to fill the gap by studying about various constitutional doctrines like checks and
balances, separation of powers, rule of law etc. The researcher is to study as to what are
the various provisions in our Indian Constitution that deals with „living constitution‟
and how the judicial pronouncements have been helping in interpreting the Constitution
in order to make it a living document. Lastly, the researcher will also try to establish the

36
link between „originalism‟ and „living constitution‟ and will bring about the concept of
„living originalism‟.

Hence, the above-mentioned books and articles are the torch bearer for research
problem. The researcher by reviewing many books and articles came to know the
various aspects of Indian Living Constitution. Even though many landmark cases have
influenced the originalism thus tending to transform into living constitution but as such
are not discussed or analysed anywhere. In the researcher‟s opinion, research in this
area has the potential of being explored much further.

1.5 PROBLEM PROFILE

Is it true that our Constitution is so robust that it needs no change at all? Is it true that
our Constitution makers were so farsighted that they had foreseen all the possible future
problems to come and then framed the Constitution? Is it true that what has been
understood at the time of framing the Constitution is to be understood in the same way
in present times also? Is it true that Constitution can be changed or its interpretation can
be changed without imposing any limitation on it? The answer to all these questions
can be given by analyzing the two different approaches i.e. „originalism‟ and „living
constitution‟. The actual problem lies with regard to the reconciliation between the two
aspects i.e. „original constitution‟ and „living constitution‟. The debate between the
originalists and living constitutionalists revolve around the „interpretation of the
Constitution‟ itself. Originalists believe that what is point of having a written
constitution if the judiciary is to be given the power and freedom to interpret it in the
way it wished to. They claim that how can one be so sure that the judges will interpret
the Constitution in a more appropriate manner as was understood by the framers of the
Constitution; whilst on the other hand, living constitutionalists opine that nothing can
remain within the confined limits and the present dignitaries are duty bound to interpret
the Constitution as are expected from them. Let us say for an example that the
Constitution contains a provision (which it actually does not) that “the members of
Parliament or State Legislature shall wear the latest fashion when sitting in session”. It
can be articulated that this provision points to one kind of fashion in 1950‟s and another
now. What was considered to be a fashion, when Constitution was framed, might not

37
be a fashion of present times. Holding the originalists approach, does that mean that the
members of Parliament or State Legislature of today be stuck to the fashion which
dated back in 1950‟s? The answer seems to be obviously no. The interpreters are
supposed to stick to the meaning of the words used in the provision i.e. „latest fashion‟
and not the application and interpretation of the words of the provision. Therefore the
reconciliation between the two approaches can be brought about when the actual
understanding of the provisions of the Constitution can be made. It can be enunciated
that the „changes‟ or „variations‟ are expected to be brought in the „interpretation‟ and
„application‟ of the provisions of the Constitution and not in the „meaning‟ of the
provisions of the Constitution. Highlighting upon the harmonization of the two
approaches, it is to kept in mind that shifting from original intent to living intent should
not be affecting the fundamental norms of the country. When original Constitution is to
be changed in context of living Constitution, such changes should remain within the
ambit of Constitutionalism in India. The relation between the three terms: Originalism,
Living Constitution and Constitutionalism is to be studied in order to cull out the true
application and interpretation of the provisions of the Constitution. Neither of the two
approaches is perfect in its entirety. The problem is to make a balance between the two
in each other‟s light and to understand that it would be the acuteness of the two
approaches which can bring out the best interpretation of the Constitution.

However the notion of „originalism‟ and „living constitution‟ cannot be studied in

isolation without making any reference to rule of law. Rule of law implies any law
which is just, reasonable and non-discriminatory. The broad emphasis of rule of law is
on the absence of any centre of unlimited or arbitrary power in the country, on proper
structurisation and control of power, absence of arbitrariness in government68. The
doctrine of Rule of Law was propounded by Dicey in British Constitution wherein he
evolved three ideas under it, namely, absence of arbitrary power, equality before law
and individual liberties. In the original Constitution itself, the rule of law was
incorporated in its very inception in Article 14 of the Constitution. Living Constitution
and the Rule of Law are related ideas about how the powers of government and of state

68
M.P. Jain (ed.), Indian Constitutional Law 8 (Lexis Nexis, Gurgaon, 2014).

38
officials are to be limited... Remarking upon „living constitution‟, living
constitutionalism refers to specific constitutional devices and procedures, such as
separation of powers between the legislature, the executive and the judiciary, the
independence of judiciary, due process or fair hearings for those who charged with
criminal offences and respect for individual rights, which are partly constitutive of a
liberal democratic system of government, whilst on the other hand, Rule of Law
embodies certain standards which define the characteristic virtue of legal system as
such69. Commonality lies between the two is on the idea of lack of arbitrariness in
governmental system. The assumption that constitutionalism requires not simply
symbolism but substantive action reflecting the necessary attributes of rule of law must
form part of constitutionlisation in any legal order70. It can be well stated that rule of
law and living constitution are directly interconnected.

It was originally felt by the framers of Constituent Assembly that for the democratic
functioning of the nation, there is a requirement of division of powers among the
organs of the Government which led them to make an express provision as stated
Article 51: Separation of Executive from Judiciary. Articulating upon the separation of
power of various organs and their importance with regard to living constitutionalism
within the constitutionalisation process has always been contestable. Powers have to be
divided among judiciary, legislature and executive so that they can work within their
confined canons by imposing some limitations on their powers as well. This separation
of power can produce a strong basis for analysing the notion of constitutionalism. Once
the powers are disunited, all the organs then owe a sense of duty towards the country as
not to move beyond what is actually assigned to them. To ensure the fettering of
constituted power within a constitutionalisation process, a strong divisions system that
excludes remoteness yet ensures that each point of governance possesses some restraint
over another with atleast a horizontal and, in some orders, a necessary vertical system
to accompany it, is indispensable for constitutionalism71. In order to have good
governance in the nation, it is highly recommended to split the powers within the living
69
O.P. Gauba, Constitutionalism in a Changing Perspective 13 (Segment Books, New Delhi, 1996).
70
Aoife O‟Donoghue, Constitutionalism in Global Constitutionalisation 26 (Cambridge University
Press, United Kingdom, 2014).
71
Id. at p.38.

39
constitution. Therefore, if we are changing the interpretation of Constitution from its
„original intent‟ to „living intent‟, it should not be done in such a way which infringes
the concept of separation of powers. Moreover, there is no point of dividing the powers
among the organs until and unless we have some mechanism to keep an eye over their
functioning. Hence, checks and balances is the solution which is considered to be the
touchstone of our constitutional democracy. It, prima facie, imposes a restraint on the
act of governmental organs by allocating their individual spheres. Lack of checks and
balances and absence of political freedom may make the governance entirely fragile.
To provide for effective checks and balances, we imbibe the feature of separation of
powers. For example: what the executive does is subject to judgment by the courts to
ensure that it is in compliance with the laws made by parliament and moreover in a
constitutional democracy, parliament itself is free to make laws but only to the extent
that such laws are in compliance with the constitution, that being the supreme law72.
Therefore, it can be enunciated that even if we support our Indian Constitution to be a
living and dynamic one, we still need to remember that changes can be made in the
Constitution but not in such a way that it infringes these basic norms i.e. rule of law,
separation of powers and checks and balances. There always remain a conflict between
Executive and Judiciary. For an instance, the latest conflict was with regard to judges
appointments and these three notions (rule of law, separation of powers and checks and
balances) too were involved. It led to change in the written text of Constitution by
inserting Art. 124A, 124B and 124C by National Judicial Appointments Commission
Act 2014. After a brief analysis, it was made crystal clear that „interpretation‟ of the
Constitution can be changed (as in this case was Article 124) but however the written
text of the Constitution cannot be changed in a way that tends to violate our basic
norms and basic features of Indian Constitution. So „originalism‟ can be shifted to
„living constitution‟ but with a restriction of maintaining the fundamental principles of
our democratic nation.

After analyzing the norms of „originalism‟ and „living constitution‟, there comes into
picture the concept of „living originalism‟ which is often understood as the intersecting

72
Alex T. Magaisa, Constitutionality versus Constitutionalism, available at https://kar.kent.ac.uk/30495
/1/Submission4.pdf (last visited on April 27, 2017).

40
point between the two. Both the original intent and living intent can be better perceived
if the point of junction is understood as to what brings them so near to each other.

1.6 RESEARCH OBJECTIVES

1) To understand the need for exploring the notion of living constitution.
2) To comprehend about the justifications for „originalism‟ as well as „living
constitution‟.
3) To extrapolate the various principles of constitutionalism in India.
4) To deduce the factors causing the change from „original constitution‟ to „living
constitution‟.
5) To evolve the different facets of living constitution in India.
6) To assimilate the concept of rule of law in the light of living constitutionalism.
7) To find out the relationship between the concepts of separation of powers and
checks and balances over all the organs of the government in the original as well as
living Constitution.
8) To cull out the whim idea of „living originalism‟.

1.7 HYPOTHESIS

The Parliament and the Supreme Court of India have amended and interpreted the
Constitution respectively number of times making it more dynamic and living. While
amending and interpreting the Constitution, its original textual intent has been
maintained, preserved and protected in spirit.

1.8 RESEARCH QUESTIONS

1. What is the relation between „original intent‟ and „living intent‟?

2. How the consensus between „originalism‟ and „living constitution‟ can be brought
about?
3. What is notion and justification of „originalists‟ and „living constitutionalists‟ in
context of Constitution of India?
4. What constraints can be put up in order to make „original constitution‟ into a
„living constitution‟?
5. Whether Constitution of India cannot be studied in its original form?
6. Whether Constitution is required to turn it into a living and organic document?

41
7. How rule of law is sine quo non for the promotion of living constitutionalism in
India?
8. How separation of powers can achieve the core ends of living constitutionalism?

1.9 RESEARCH METHODOLOGY

The present research is based on Doctrinal Study which is non-reactionary method of

data collection from certain area in which expression of reactionary views of people is
absent. The reactionary way of data collection by questionnaire, interviewing,
observation, survey etc. was not resorted to. In order to conduct this research Primary
as well as Secondary documents like Reports, Acts, Conventions, Protocols, Books,
Journals, Proceedings of seminars, books, Research Journals, case laws, Official
Records, Magazines, Newspapers and Websites etc. is the basis of study. This research
study also includes historical records of relevant documents like Parliamentary debates
etc.

1.10 CHAPTERISATION PLAN

1. Introduction
2. Historical Background
3. Originalism: A Conceptual Exordium
4. Manifestations of Living Constitution
5. Jurisprudential Norms and Living Constitution
6. Multi – Farious Facets of Constitutionalism in Context of Living Constitution
7. Conclusion and Suggestions

42